San Jose man, 74, charged with misdemeanor for carrying gun near school

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Sherman “Tony” Fontano with his dog, ‘Magnum’, at his San Jose home Thursday Dec. 17, 2009. Fontano decided to take part in a new national campaign to assert gun ownership/Second Amendment rights. As part of that campaign, it was suggested that gun owners unload their handguns and wear them visibly at their sides. Fontano made the mistake of wearing his sidearm in the vicinity of a school. In California, possession of a firearm within so many feet of a school is a felony. An administrator at the school saw Fontano just off the school grounds with his gun at his side and called the law. Fontano was arrested and is now facing felony prosecution. (Photo by Patrick Tehan/Mercury News)

A month ago, nearly two dozen San Jose police officers circled around Sherman “Tony” Fontano after a parent spotted the 74-year-old toting an unloaded .357 Magnum near a school.

He was arrested, questioned for hours, and told he could possibly face a felony. It’s illegal to carry a weapon within 1,000 feet of a school.

But Fontano, who supports the controversial Open Carry movement, is being charged with a lesser misdemeanor count — possessing a firearm within a school zone.

And Fontano is thanking his lucky stars.

“This is much, much, much better than a felony,” Fontano said.

The Santa Clara County District Attorney’s Office filed the charge Jan. 6, and Fontano, who is out of custody, was told to appear in court Feb. 22.

“In making a charging decision, we have the discretion in certain cases to file charges as a felony or misdemeanor,” District Attorney’s Office spokeswoman Amy Cornell said in a statement. “A misdemeanor charge is an appropriate option when we conclude after a review of the available evidence and other facts related to the defendant, that it is sufficient to serve the public interest, while at the same time, holding the defendant appropriately accountable.”

Fontano insists he isn’t political, and he just wanted to walk around with his showcase Magnum after his brothers told him about the Open Carry movement. Supporters of the movement want to persuade the public that guns should be treated as an accessory, much like a pen or an iPod, and they have been carrying them openly to help make their point.

The California Penal Code only prohibits concealed weapons and says nothing about if weapons are unloaded. The movement is gaining attention, pro and con, all over the country.

Fontano said he didn’t realize there are certain exceptions about where you can walk around with an unloaded gun.

Now, he said, he’s getting educated. He bought a book and is brushing up on the law.

“Yeah, I’m going to carry my gun again,” he said. “Just not near a school.”